The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-29

equal and that the courts of the state move forward
In the discharge of their duties free from executive
pohcy and beyond executive control. The Governor
Is clothed with the manhood that places him above
the whms and stronger than any prejudice that |
could possibly exist in court and leaves his position
to those who under the Constitution are to desig
nate the proper Incumbent and who are 20 try him
Tor crimes or nlsdemeanors in office. and all pre-
SYMPTOMS OF integrity that can and should weigh in
favor of court must be allowed in favor of the rep
resentatlve men of the people.
II 1T be true that this conrt-and if it is true,
IL s true also OF the courts of the United States
can, upon some assumption that an election did
not take place at the proper time, or in the case
of an election of President, that the college of
electors did not meet at tho proper time in any
State or that their vote was not properly re-
corded-if the courts may, upon the assumption
OF an Attorney general, a rival claimant for
the governorship, the presidency consider
and decide such questions, then. if your Honors
please. that principle of checks and balances
upon which our national government was
formed and after which out State government
is modeed, is completely and forever at en- d.
In the case in Fourth Wisconsin-and should
say with reference to that case, that there was
no such provision in the Constitution as we have
mere, lodging the counting of the votes and the
declaration of the result and the induction of
the Governor into Office to the Legislature as we
have here-there was such provision; the
votes were canvassed by a state board of can
vassers. It was claimed in that case that
Mr. Barstow and his friends had secured a can.
vass In his favor by the most outrageous and
"
with great interest the discussion of this
question by Mat Carpenter and counsel in
that case 1t is full Of historical illustrations
and OF references to the most reputable authors
| upon constitutional law and governmental
| philosophy. He may 60 further in his conclu-
sions than would go, this court may follow:
but perusal OF the cogent and welllustrated
| reasons he gives why the judicial department
should not have the control of the question who
| is and who is not Governor, cannot out be useful
| to any student OF the law. After alluding to an
| objection urged by NJ. Turgot to our national
| Constitution, that it undertook to balance these
different departments as if the same equilibrium
| of powers which had been thought necessary to
| balance the enormous preponderence of royalty
could be of any use in republican form of gov
| eminent based upon the equality of the citizens,
| Mr.. Carpenter says:
This objection if well taken applies to national
as we'll State governments and to justify the
siy for this division of powers. this balan cling and
equilibrium of powers Mr.. Adams put forth his de-
Tense of the Constitution which. general treatise
upon the science of government and commentary upon
our own is regarded authority. What the
dreaming, theorzing Frenchman regarded a blem
ish. the great American patriot regarded as crown
ing excellence In his preface to that work Mr. Adams
says: Representations instead of collections of the
peoples total separation of the executive from the
legislative power and Of the judicial from both; and
the balance in the legislature by three independent
equal branches, perhaps, the only three dscov
cries in the Constitution of free government since
| the institution of Lycurgus
Mr.. Writ, in case brought to his attention,
and reported in the first opinions of the Attorney
general of the State. says, on the question sub
mtted to him: Whether, in any case, an in
Junction is binding upon the executive depart
ment OF the government; and second, If So
whether an injunction is binding upon the Of
fcers of the treasury"
On the first and second questions am of the opin
ion that it is not within the power of the judicial
branch of our government to enjoin the executive
from any duty specially devolved upon it by the legs
latve branch of the government or by the Constitu
ton of tho United States. IL it otherwise, it
would be in the power of the juccia branch Of the
government to arrest the whole power of the other
two branches. My opinion is that the judiciary can
no arrest the executive in the execution of
sttutonal law than they arrest the Legislature it.
self in passing the law would be easy to show that
the existence of such power in the judiciary would
place the existence, not only of the government. but
of the Nation ITSELF at the of that body in every
opinion, essential to the government to assert for the
| executive this independence of action.
In the celebrated Dorr case. in Rhode Island,
the court, in charging the jury, is quoted By Mr.
| Carpenter as saying:
Courts take notice without proof offered from the
bar what the Constitution is or was and who is or
| was the Governor of their State It belongs to
the Legislature to exercise this high duty THAT of
canvassing votes. It is the Legislature which, in the
exercise of its delegated sovereignty counts the
and declares whether Constitution be adopted,
Governor excited not; and cannot revise
verse their acts, In this particular without usurpng
their power. Were the votes the adoption of our
present Constitution offered here to prove that
it adopted. those given for the Gov
under it, to prove that he not elect
ed, would not receive the evidence OurSelves-we
could permit it to pass the jury. And why not?
| Because, If we do so, should cease to b. mere
judicial and become political tribunal. with the
whole sovereignty in our hands. Neither the peope
nor the Legislature would be sovereign. We should be
sovereign, you would be sovereign; and should
deal out to parties gant here at our bar sovereign
ty to this that, according to rules laws of our
own making, and heretofore unknown in courts.
1t will be noticed that in this the court
said that it belongs to the Legislature to decide
whether there was an election. That is precise
| lvy kho viii hoe hoo IN fako
this case out of the provision of the Constitution
to which have just referred, confiding to the
Legislature the power to determine who had been
elected Governor and Lieutenant governor.
+, Dorr and his friends had gotten up govern
ment and they held election 1t was not a
! question of how many votes Dorr got, or some
body else, but it was distinctly, as here whether
, any election could be held The political de-
partment of the State had held that it could moi
be held, and the court trying him said that was
!, conclusive. And it must be equally conclusive
here when our Legislature, under the forms of
the law, or if there was lacking any due form o.
!; law it was lacking simply because certain mem
I bers OF one branch Of the Legislature, duly no
= titled, as these papers show, by the Speaker, Of
: his purpose to discharge constitutional duty
: | refused to attend and discharge theirs. has de
. clared Robertson to have been elected Lieuten
:. antgovernor and has indicted him into Office
> And. if your Honors please the cases of Col
!. Inns and of Bddle against Willard do not at al
J initiate against this doctrine. In the case o
Collins the Legislature passed law providin,
that there should be an Attorney-general WIZ
q should be elected by the Legislature. Befor
the Legislature adjourned the Governor as
9 sumed to appoint an Attorney general. l be
lieve orr distinguished fellow citizen. Joseph A
Wright, ssthen Governor of the State. HI
:. first ordered commission to Isaac Blackford a
: Attorney general, and Secretary of State Col
!. Inns, upon his direction, issued it. 1t was pu
t into the mails, addressed to Isaac Blackford
l. and after it had been thus addressed, some one
by the direction of the Governor, recovered tn
g commission from the mails and inserted tn
II name of Judge Morrison, erasins the name o
g Judge Blackford. The question came before tn
n question, but involving the question smpl
d whether there was a vacancy in the Office o
l. | Attorp.v-yanara1 that could ha fillad nv tn